The Copyright Wars: Three Centuries of Trans-Atlantic Battle

The Copyright Wars

The Copyright Wars

THREE CENTURIES OF TRANS-ATLANTIC BATTLE

Peter Baldwin

PRINCETON UNIVERSITY PRESS

PRINCETON AND OXFORD

Copyright © 2014 by Princeton University Press

Published by Princeton University Press, 41 William Street, Princeton, New Jersey 08540

In the United Kingdom: Princeton University Press, 6 Oxford Street, Woodstock,

Oxfordshire OX20 1TW

press.princeton.edu

Jacket design by Leslie Flis

All Rights Reserved

Library of Congress Cataloging-in-Publication Data

Baldwin, Peter, 1956– author.

The copyright wars : three centuries of trans-Atlantic battle / Peter Baldwin.

pages cm

Includes bibliographical references and index.

ISBN 978-0-691-16182-2 (alk. paper)

1. Copyright—Europe—History. 2. Copyright—United States—History. I. Title.

K1420.5.B359 2014

346.404'82–dc23       2013049603

British Library Cataloging-in-Publication Data is available

This book has been composed in Sabon Next LT Pro and Scala Sans OT display

Printed on acid-free paper. ∞

Printed in the United States of America

10 9 8 7 6 5 4 3 2 1

For

Tom

Jemima

Daniel

Sam

Sigi

Lucy

Ben

the next generation of my unexpected family

Contents

Introduction: The Agon of Author and Audience 1

1. The Battle between Anglo-American Copyright and European Authors’ Rights 14

2. From Royal Privilege to Literary Property: A Common Start to Copyright in the Eighteenth Century 53

3. The Ways Part: Copyright and Authors’ Rights in the Nineteenth Century 82

4. Continental Drift: Europe Moves from Property to Personality at the Turn of the Century 126

5. The Strange Birth of Moral Rights in Fascist Europe 163

6. The Postwar Apotheosis of Authors’ Rights 199

7. America Turns European: The Battle of the Booksellers Redux in the 1990s 262

8. The Rise of the Digital Public: The Copyright Wars Continue in the New Millennium 318

Conclusion: Reclaiming the Spirit of Copyright 383

Acknowledgments 411

Notes 413

Index 513

The Copyright Wars

Introduction

THE AGON OF AUTHOR AND AUDIENCE

In 1948 several Soviet composers, including Dmitri Shostakovich, objected to the use of their music in an American spy film, The Iron Curtain, that was distinctly anti-Communist. These Soviet composers understandably feared the gulag for appearing in Hollywood’s first Cold War effort.¹ Though their music was unchanged, they protested its political use. When Shostakovich sued in the United States, he failed. The works were in the public domain, thus freely available for anyone’s use, the composer had been credited, the film did not claim that he agreed with its views, and the music had not been distorted. How, the court asked, had the artist’s rights been violated? Is the standard to be good taste, artistic worth, political beliefs, moral concepts, or what is it to be?² But in France a court ascertained moral damage. The film was banned and the composers were awarded damages.

In 1988 the director John Huston sued to prevent the Asphalt Jungle, which he had filmed in 1950 in black and white, from being shown on television in a colorized version. In the United States, according to the work-for-hire doctrine, the film studio—and not the director it employs—is the author. But in France, after Huston’s death that year, his children and his screenwriter invoked the continuing aesthetic claims, or moral rights, that remain with authors in French law even after they have sold their works. Over the next six years, five different French courts first prevented screening, then allowed the film to be broadcast only if the director’s objections were publicized, and finally levied hefty fines on Turner Entertainment, the errant colorizers.³

Prince Michael of Greece, related through his mother to a family that still pretends to the long-abolished French throne, writes histories and historical novels. La nuit du sérail (1982) was ghostwritten with Anne Bragance, who signed a work-for-hire contract under New York law, renouncing her moral rights, including that of being named as a coauthor.⁴ When sales of the book took off, however, Bragance sought not only a more generous slice of the proceeds but also to be named as coauthor—and in typeface larger than the putative author. Since in French law the author’s moral rights cannot be alienated, a French court set aside her contractual obligations. She won a place next to the prince on the title page of French editions, though not more of the royalties, nor any font-size favoritism.⁵

Samuel Beckett gave famously precise stage directions. He objected, for example, when directors performed his plays with women, non-white casts, or incidental music.⁶ He sued the American Repertory Theater in Cambridge for playing Endgame in an abandoned Boston subway station and the Comedie Française for doing so on a set bathed in pink light.⁷ Female Vladimirs and Estragons were pursued in Paris, Holland, Nashville, and Pontedera. Beckett also quibbled about stagings of Godot in Dublin, London, Salzburg, Berlin, and Miami.⁸ In Avignon in 1991, Godot was allowed a female cast—as long as the estate’s letter of objection was read aloud at each performance.⁹ Women don’t have prostates, Beckett insisted, alluding to Vladimir’s constant urination.¹⁰ In Nashville, Avignon, and Pontedera, the theaters cravenly argued that, though played by women, the characters remained male.¹¹ In Australia, with the use of music at issue, the director pushed back more robustly, complaining that in coming here with its narrow prescriptions, its dead controlling hand, the Beckett estate seems to me to be the enemy of art.¹²

None of these events was earth shattering. Yet each speaks to a view of the position of authors in society—their rights in their works, their relationship to their interpreters, performers, and audiences, and their power to enforce their claims. As Congress considered giving American authors similar claims in 1987, Sydney Pollack, director of Tootsie, Out of Africa, and other popular movies, testified that this is a debate about the dignity with which society regards artists and the value society places on the integrity of artistic endeavors.¹³

More generally, such disputes pose the basic dilemma of intellectual property. Intellectual works are both the property of their creators and society’s cultural patrimony. How to resolve this inherent tension? The author seeks fame, recognition, and reward. The audience wants easy, cheap, and quick access to a cultural cornucopia worth treasuring. Too little reward and authors are discouraged. Kept from its culture by too high prices or overly narrow access, the audience is stunted. The pas de trois among author, audience, and the disseminators who mediate between the two is delicate. How to strike the right balance between rewarding authors to stay productive yet also letting in the audience, whose cultural engagement is, after all, the authors’ presumed goal? The interests have to be weighed against each other. But whether the angle has tilted in the authors’ or the audience’s favor has varied, both over the course of copyright’s development and among nations.

These anecdotes illustrate two broader points. First, seen historically, from the eighteenth century to the present, rights holders—whether authors or disseminators—have won an ever-stronger stake in their works. In certain nations some claims remain with the author and his estate perpetually. But in all countries rights have been continually extended on their owners’ behalf. The first British (1710) and American (1790) copyright laws gave authors rights over verbatim copies of their writings for fourteen years after publication. As of 1993 in the European Union and 1998 in the United States, that had expanded to seventy years after the author’s death, not only for the primary work but also for all manner of other works derived from it. Assuming that authors live the same seventy-nine years as the average American, they, their heirs and—most often—their assignees now generally own works for well over a century.

Over the past three centuries the single most common complaint voiced by authors in defense of their prerogatives has been the alleged contrast between how conventional property belongs to its owners forever while works of the mind are the author’s and his heirs’ for only a limited time before they join the public domain, free for all to use. Why, countless authors have demanded to know, do we not own our works perpetually, able to pass them to our descendants, just as others can with their houses, factories, or farms?¹⁴ But this is authorial bellyaching. Intellectual property has in fact come to be treated more favorably than its conventional cousins, especially real property. First and foremost, unlike real estate the value of a copyright is not taxed.¹⁵ California (to take just one example) assesses annual property taxes at 1 percent of sales prices. The state thus takes your house, or at least its cash value, once every century.¹⁶ In the European Union and the United States, the author’s estate loses the work to the public domain seventy years after death. Excepting the occasional modern Mozart, dead at thirty-five, authors thus own their works for longer than they do their houses. In the nineteenth century it was, in fact, suggested as a reasonable trade-off that, if literary property were granted perpetual protection, as many demanded, it should also be taxed.¹⁷ But since it is not, it is hard to spot why its truncated protection is unfair. By contrast, it is certainly easy to see the social benefits of open access and an expansive public domain.

Not only does copyright today last a very long time, it is now also granted much more easily, indeed automatically. The first copyright laws required authors to jump burdensome bureaucratic hoops to assert their claims: application, registration, deposit, and the like. Yet, as of 1908, all member states of the first international copyright union, the Berne Convention, were obliged to grant copyright without any formalities whatsoever. Every scribble, doodle, and bathtub aria was thus a protected work as of its creation. The shopping list on the fridge is as copyrighted as Dan Brown’s latest blockbuster. Previously, all works used to be born into the public domain, except for those few someone considered worth the trouble of protecting. Today every possible creation—however trivial—is legally protected as its creator’s private property.

Nor are we talking only of money. For the last three centuries authors have increasingly been given control over all conceivable forms of their works. In the eighteenth century neither translations nor abridgments, nor most other derivative uses of works, infringed. A translation, for example, was not seen as the same work, nor—thanks to the language difference—as competing in the same market. Therefore, it was of no concern to the author. Abridgments were considered socially beneficial, able to enlighten more efficiently than lengthy originals. Authors were not thought harmed when others shortened their works.

In the meantime authors have gained control over the broadest possible panoply of different works, as well as largely all derivative uses thereof. In the words of one witness before the Royal Copyright Commission in 1878, authors were now given every advantage which can possibly be derived from that work of art, even indirectly and by independent exercise of ability.¹⁸ Throughout the nineteenth century German composers could freely set poems to music.¹⁹ In 1965, however, the poets’ lobby prevailed, ending the composers’ right to accompany their verse musically as they pleased, reprinting their texts along with the music.²⁰ That alone is perhaps not to blame for the decline of Lieder, the once archetypical German musical art form. But today any would-be Schubert has to fight with all the other composers who already have rights to Goethe’s Erlkönig and negotiate with Wilhelm Müller, author of Die schöne Müllerin and Die Winterreise.

In aesthetic terms, too, American and especially European authors have received ever-greater powers over the past two centuries. They may decide how their works appear, whether others may make use of them for derivative creations, and if so, under what circumstances. They can prevent changes they do not like, and in some nations they can withdraw works they no longer agree with. In certain cases such powers of aesthetic control last perpetually. Whether forever or only seventy years postmortem, authors and their estates have not been shy in locking down what was permissible. Beckett and his heirs prevent women from playing Godot. The Gershwin estate specifies that Porgy and Bess be played only by blacks. Meanwhile, in 1954 the French banned Carmen Jones, the Otto Preminger filming of Carmen, since Bizet’s heirs found its setting among black Americans unworthy of the master.²¹ And a century and a half after its publication in 1862, Victor Hugo’s great-great-grandchildren for years kept the French justice system in knots all the way up to the Supreme Court, pondering whether sequels to Les Misérables were permissible.

The 1913 statue of the Little Mermaid by Edward Eriksen is among Copenhagen’s biggest tourist attractions. It prettily embodies the main character of Hans Christian Andersen’s fairy tale and is helped too by its picturesque location in the harbor. That has not tempered the sculptor’s heirs’ pursuit of their interests. They have brought or threatened suit against cities that presumed to erect their own variants. Not coincidentally they offer authorized replicas ($101,741 for the five-foot version).²² And they have kept their great-grandfather’s statue under firm aesthetic control. In 2008 they objected to the Scandinavian artist duo Elmgreen and Dragset’s When a Country Falls in Love with Itself, which placed a mirror in front of the mermaid. Rather than staring wistfully out to sea after her lost prince, she now posed before the tourist hordes, admiring her own reflection.²³

Perhaps the most remarkable aspect of this vast expansion of authors’ and rights holders’ claims to their intellectual property is that it reversed the course followed at much the same time for conventional forms of property. Regarded suspiciously as the outcome of humanity’s fall from grace by medieval theologians, property was elevated to the status of a human right during the Enlightenment.²⁴ The right of property was defined in 1765 by the great British jurist William Blackstone as that sole and despotic dominion exerted by owners over their belongings in total exclusion of the right of any other individual in the universe.²⁵ In 1804 the Napoleonic Code embodied this view in statute, describing property as the right of enjoying and disposing of things in the most absolute manner.²⁶

Despite such bravado, over the following two centuries European, British, and American law leached away at the pretentions to absolute dominion entertained by the owners of conventional property. Everywhere property has been ever more subjected to restrictions imposed by the state as the ultimate regulator. From nuisance laws to rent regulation, from zoning codes to health-and-safety rules, from taxation to outright takings, conventional property—the state has made clear—is possessed on society’s premises and only insofar as private ownership is compatible with broader social objectives. The social determinants of private property became ever more prominent.

For intellectual property, in contrast, developments went in the opposite direction. Owners—whether authors themselves or their assignees—gained ever-firmer control over their works. Their ownership not only approximated that of conventional property, in many respects it exceeded it. In part, such unleashing of the claims staked by owners of intangibles followed developments in the history of property more generally. Land was the ultimate source of power and prestige in the Middle Ages. But the French Revolution’s expropriations demonstrated that, as immovable, it had nowhere to hide and was vulnerable to changing political circumstances. For a while urban property supplanted it in importance as growing cities concentrated wealth in the hands of a new landlord bourgeoisie. But as new democratic governments—facing housing shortages early in the twentieth century—responded to their voters and imposed rent moratoria and controls and otherwise restricted rights, urban property owners too discovered the limits of their free control.²⁷

Instead, intangible forms of property became the preferred investment. Because he appreciated their flexibility, John Wemmick, the bill collector in Dickens’ Great Expectations, was obsessed with portable property, small objects of value easily convertible to cash. Intangible property took such advantages further. Government debt has been marketed since the late thirteenth century, nor are bonds, stocks, securities, and other financial instruments recent inventions. Yet their importance has mushroomed in recent centuries compared to real property. Both more liquid and fungible—more fluid than water and less steady than the air, as the German poet Heinrich Heine said—they were also harder for governments to clamp down on.²⁸ In our own day, with the globalization of financial markets, capital’s transnational mobility and its outmaneuvering of the taxman has become a leitmotif.

The growing heft of intellectual property is thus part of a larger secular shift from ownership of immovables to movables and from tangibles to intangibles. Intellectual and other immaterial property has become an increasingly dominant element of modern economies. Already in 1863 the Scottish economist Henry Dunning Macleod classified most wealth as incorporeal: the franchises of ferry, railway, telegraph and telephone companies, as well as patents, trademarks, goodwill, and annuities.²⁹ In one Pennsylvania county intangible assets in probated estates grew from 10 percent in the colonial period to over two-thirds by the end of the nineteenth century.³⁰ In tandem, the concept of property expanded enormously from land and movables to encompass almost everything under the sun, including such entirely dematerialized things as business goodwill, trade secrets, and personality.³¹ Property is everything which has exchangeable value, Supreme Court Justice Noah H. Swayne declared already in 1873.³² Today, over 40 percent of the market value of American companies is intellectual capital.³³

However much some may still strike the pose of misunderstood Romantic artists in their garrets, authors have become economically and socially more powerful than ever before. What used to be a calling, pursued only by those motivated by more than material reward, has become a profession like any other. Most authors are today salaried employees, not the independent intellectual entrepreneurs for whom the copyright and patent systems were first designed. Their rights are usually surrendered to corporate employers in return for wages, health insurance, vacation time, and pensions. Nonetheless, there are more of them than ever before, and their output underpins modern economies.

Yet that is only half the story. The second point our starting anecdotes illustrate is that, while intellectual property has become ever more economically important across the globe, it has also been treated differently among nations. Sticking to those aspects of intellectual property dealt with by copyright, authors’ rights over their works have—quite simply—been stronger in some nations than in others. In particular, authors have enjoyed a stronger legal position in continental Europe than in the Anglophone world. Britain and America’s copyright systems draw clear distinctions between authors and rights owners. The two may overlap. But once the author has assigned rights to his work, they usually diverge. When Anglophone authors sell rights to publishers, producers, and other disseminators, they lose almost all control, while the new owners are largely free to do as they please. Work-for-hire, a core doctrine of Anglo-American copyright, transforms the employer into not only the owner but also the legal author of his employees’ work.

Continental Europe, in contrast, has respected the personal connection between author and work even after economic rights were alienated. What are known as authors’ moral rights continue their control over works even after sale, ensuring that they are not altered against their wishes. In Europe, more than in the Anglophone world, authors have thus retained aesthetic control even as they surrender economic rights. Though they may no longer be rights holders, they retain sway as authors. Two quite different approaches—Anglo-American copyright and continental European authors’ rights—thus have voiced divergent views of intellectual property. Copyright was intended to give authors sufficient encouragement to remain fruitful, thus enriching the public domain and serving useful social functions—to enlighten, entertain, and educate. In authors’ rights systems, in contrast, the creator was the focus, not the public domain nor the audience. Thanks to his investment of labor and creativity, the author owned his works like other forms of property. To guarantee his just desserts when he sold them in the marketplace was the point of the Continental approach.

How have the owners of intellectual property massively enhanced their rights over the past three centuries? And how did trans-Atlantic differences arise over the claims that authors could stake to their works and the access that audiences could demand to their patrimony? Those are the questions this book asks. As we will see, the basic dispute between these two approaches to intellectual property—one giving priority to authors, the other to their audience—has been with us for almost three centuries and continues into the digital age. Positions first adopted already in the eighteenth century remain surprisingly unchanged today.

When authors were first granted statutory rights to their works three centuries ago, both the civil law nations of France and Germany and the Anglophone common law world sought to balance between the new powers thus granted creators and the public’s demand for access. Starting in the eighteenth century, authors were made only the interim masters of their works. After these rights expired, their creations were quickly added to the public domain, society’s store of common knowledge. During the nineteenth century, authors’ rights expanded both in Europe and in the Anglophone world: to new works beyond books, plays, and engravings and to ever-lengthier terms of authorial control. Additionally, in Europe a novel ideology of authors’ rights emerged that went well beyond the limited scope of mere copyright. At first it founded creators’ claims on the allegedly natural right to property, extended now to include also literary property. In the nineteenth century, however, it expanded further to embrace the idea that, since works inherently expressed the personalities of their authors, they could never be wholly separated from them.

Both tacks of the European authors’ rights ideology—natural rights of property and of personality—strengthened the creators’ sway. Their purchase over works was won at the expense of disseminators, of other authors, and of the audience. Disseminators no longer owned works outright, able to do as they pleased. Authors of derivative works, as well as performers and interpreters, found their own artistic freedom curtailed by primary creators. And the panoply of culture otherwise available to audiences was circumscribed as authors asserted their control over the uses that works could be put to.

In late nineteenth-century France and Germany authors were thus given expansive new powers, including moral rights of aesthetic control that lasted even after they had sold their works. Unexpectedly for a reform that so favored authors, moral rights were strengthened by the fascist regimes of the interwar years, claiming to venerate authors even as they brutally subordinated them to the alleged will of the people. But the high point of the Continental ideology of authors’ rights came with the legislative incarnation of moral rights during the 1950s and ’60s. France and Germany sought to distinguish their nascent postwar democracies both from their totalitarian predecessors and from what they and their fascist forebears alike saw as the Anglophone world’s crass commercialization of culture.

In contrast, during the nineteenth century Britain and especially America maintained the Enlightenment ideal of an expansive public domain. Authors were to be empowered not—as in Europe—because they were owners of their works and therefore deserved reward but because—and only insofar as—productive creators enriched the public domain. The social utility of enhancing the common store of culture, not natural rights to property and certainly not personality rights to works, spoke for protecting authors. Anglophone authors received few of the perks of creatorship granted their colleagues on the European continent. Terms were extended only grudgingly. Rights of aesthetic control were shunned as fanciful and needless concessions to foppish artistes. Employers retained the upper hand over their employees’ creativity.

In 1886, after decades of lobbying by writers and other authors, supported by France and other major European powers, the Berne Union was founded to coordinate authors’ rights internationally. With it, the Continental ideology of long and strong protection for authors began its global march. Fearing isolation, Britain joined from the outset but then defended its own approach to copyright from within. The United States, however, refused to recognize copyright for foreign authors until 1891, and then for the next hundred years it kept a wary distance from Berne. Only when its policymakers switched camps did America finally join Berne, in 1989. Once a culture importer and therefore a copyright pirate, the United States had since become the world’s largest exporter of content. Impelled by its content industries—emblematically represented by Hollywood—America now crept to the cross of the Berne ideology. While it never gave up work-for-hire and refused to implement moral rights in any but a pro forma fashion, it abandoned its traditional view of copyright as a temporary monopoly to encourage authors. Instead, it adopted the European view of works as a form of property, entitled by natural right to long and strong protection. Even in the United States, the author and his assignees came to reign supreme over the public.

The massive expansion of literary and artistic property rights of the late twentieth century is often blamed on Hollywood alone—and especially everyone’s favorite whipping boy, Disney. Doubtless, the American content industries stood to gain from strong authorial rights, assigned by creators to their corporate masters. But seen in a longer, transnational accounting, Hollywood had merely discovered that its interests, as a content exporter, now coincided with what had all along been the position of the European Kulturnationen. Where Europe led, Hollywood eagerly followed.

In our own era, however, the digital revolution has derailed what recently seemed to be a developing international consensus on the Berne principles of strong rights for authors and their assignees. Digital technologies have both promised universal accessibility to intellectual property and threatened across-the-board lockdown of it. They sparked new versions of the copyright battles fought during the eighteenth and nineteenth centuries. In the United States proponents of the Anglo-American copyright tradition, concerned for the public, have sought to reassert old verities against fifth columnists from the now Europeanized content industries. During the 1990s film and music corporations fought consumers over open access, peer-to-peer downloading, and digital rights management, sounding themes familiar from earlier debates. Meanwhile, consumer electronics, internet, and new media enterprises have developed a stake in the free flow of web content, adding economic muscle to the formerly marginal hacker and open access communities. Together, they have begun to stand up to the demands for digital control advanced by the content industries. When, in January 2012, Congress sought to pass new laws forcing internet providers to police infringing content on their networks, Wikipedia shut down in solidarity for a day, disrupting homework worldwide.

Even in Europe, where strongly protecting authors has been dogma since the nineteenth century, the digital age upended inherited assumptions. Authors and rights holders have so far retained their ascendancy in legislation. But, for the first time in almost two centuries, Continental skeptics asked whether authorial privileges had not reached, and possibly breached, the necessary maximum. Early in the new millennium anarchistic pirate parties in Sweden and Germany challenged the authorities’ authorphilia. They found soul mates among the citizens of the former East Bloc, who were also impatient with the inherited pieties of the Western European high cultural establishment.

History books sensibly shy away from predictions. How this most recent formulation of long-standing battles will eventually end is unforeseeable. But we can note that today’s struggles are fought in terms that would have been eminently comprehensible to those nineteenth-century reformers who battled over how broadly to extend rights and powers to authors and even to the disputants of the eighteenth century. The copyright wars of our own era are only the latest iteration of a long-fought struggle. They can therefore not be grasped without understanding its history. Chronologically blinkered as we all are, the digital generation thinks it is fighting for the first time a battle that, in fact, stretches back three centuries.

1

The Battle between Anglo-American Copyright and European Authors’ Rights

Works are created by their authors, reproduced and distributed by their disseminators, and enjoyed by the audience. These three actors, each with their own concerns, negotiate a delicate dance. Most generally, all must be kept content: the author productive, the disseminator profitable, and the audience enlightened. Get the balance wrong and things fall out of kilter. If authors become too exacting, the audience suffers. If the disseminators are greedy or the audience miserly, culture and eventually the public domain dessicate. But within these extremes there is much room for adjustment. Will copyright laws take as their first task protecting authors? Or will they consider the audience and the public domain also as important? Seen historically, that has been the fundamental choice faced as copyright developed in the Anglo-American world and in the major continental European nations, France and Germany. Each position has much to recommend it: public enlightenment for one, nurturing high-quality culture for the other. Neither can exist alone. The choice between them has never been either/or but always a question of emphasis, a positioning along a spectrum. And yet the battle between these views has also been what the Germans call a Kulturkampf, a clash of ideologies and fundamental assumptions, that has stretched back well over two centuries.

The laws governing how artists, writers, musicians, choreographers, directors, and other authors relate to their works are usually called copyright in English. But this one word covers two different approaches. The very terms used to designate the European authors’ rights alternative—Urheberrecht in German and droit d’auteur in French—voice a more encompassing approach. To capture it as we examine how these two approaches arose and evolved, this book will attempt consistently to call the Anglo-American approach copyright and the continental European view authors’ rights.¹

Copyright and authors’ rights take very different approaches to authors and their social role. Seen historically over its long development, copyright has focused on the audience and its hopes for an expansive public domain. Authors’ rights, in contrast, have targeted creators and their claims to ensure the authenticity of their works. Copyright’s defenders see it as imbued with the spirit of the common good. Copyright promotes authors’ creativity to benefit the public domain, allowing rights owners to exploit works efficiently. For its detractors copyright is philistine and commercial, treating noble creation as a mere commodity. It regards the creator as an entrepreneur and the work as a product.²

The authors’ rights tradition, in turn, valiantly protects the creator’s vision from commercialization and exploitation. It claims to rest on the eternal verities of natural rights and regards copyright as a utilitarian, man-made creature of statute.³ For its detractors the authors’ rights approach indulges seemingly whimsical artistes at the expense of the public.⁴ Its culturally conservative insistence that the creator retain the final say on a work’s form hinders collective and collaborative efforts, let alone acknowledgment of the audience’s role in determining a work’s meaning. From this vantage the authors’ rights approach embodies in statute an outmoded Romantic notion of the individual artiste, alone in a garret, dictating how his genius should be venerated. Copyright encourages innovation and promotes dissemination. Authors’ rights restrain distribution, inhibiting experimentation and public exposure. Authors’ rights speak for creators, while copyright favors disseminators and interpreters and ultimately the audience.⁵

Copyright sees culture as a commodity. Its products can be sold and changed, largely like other property. But the authors’ rights, especially their moral rights, run counter to the market. Inalienable claims, they remain with the creators or their representatives even if they conflict with the commercial ambitions of the rights owners. The authors’ rights ideology sees itself speaking for high culture. It is elitist and exclusive, while copyright is democratic and egalitarian.⁶ Copyright gives authors a limited economic monopoly over their work to stimulate their creativity, eventually enrich the public domain, and thereby serve the public interest. Private interests are thus subordinated to the public good. Authors’ rights, in contrast, make no attempt to serve the public good as such, except tangentially insofar as happy authors better society.

The Continental ideology assumes that the author’s and the audience’s interests do not contradict each other directly. The public eventually benefits when authors are treated well. But copyright’s adherents see a tense negotiation between author and audience. In their utilitarian calculation the public domain is served by protecting authors only as necessary to keep them contented and productive. Rewarding authors is not the goal but only the means to further their productivity. Social goals are preeminent, and the author’s and the audience’s claims do not always reconcile. It is somehow typical of the American reasoning regarding copyright, says a French observer, to oppose the interests of consumers to those of authors and performers.⁷

Authors’ rights, in contrast, derive from natural rights. The Continental approach defends creators and their work. In a sense it seeks no other interest—public or otherwise. Authors’ rights, says a distinguished French jurist, seek to protect the author, not society.⁸ Because it sets the author before all, writes a French law professor, balancing interests, on the model of the copyright systems, is foreign to the French tradition.⁹ The author, in the words of a standard French legal textbook, owes society nothing. He has no more obligations in this respect than the mason who builds or the farmer who ploughs. Quite the contrary, society owes him.¹⁰

This contrast between copyright and authors’ rights has often escalated into a clash of civilizations between the Anglophone world and the Continent.¹¹ As one observer has recently ventured, the European position, represented especially by France, is directly antithetical in almost all respects to that of the United States.¹² Copyright is but the regulation of the entertainment industry’s affairs, as a Continental jurist put it in 1990. It ignores the author’s personality, on whose protection the essence of civilization rests. An intimate and mysterious tie binds the work to its author. It is this connection which French law strives to protect. American law is not even aware of its existence.¹³

As the battle between copyright and authors’ rights has been fought across the channel and especially across the Atlantic from the late eighteenth century on, such vague cultural confrontations have been increasingly anchored in statute. That copyright speaks mainly for the content industries is a European commonplace. One German observer calls Anglo-American copyright the producer’s copyright, an instrument of industrial policy corresponding to the Americans’ fondness for competition.¹⁴ Europeans protect the author’s basic human property rights, another German insists, while the Anglo-Americans aim only at a simple protection of commercial and technical interests.¹⁵ In the United States and the United Kingdom it is inconceivable that business should be disturbed by an author’s scruples.¹⁶ French law, as a legal textbook puts it, specifically repudiates the idea that protecting intellectual property serves to stimulate creativity. Rather, it is a mark of respect to works of the spirit and their creators.¹⁷

Europeans often insist that copyright is primitive and archaic compared to their refined approach.¹⁸ Recognition of creativity and establishment of authors’ rights is one of the essential features of European culture.¹⁹ The danger, French commentators warn, is letting the Anglo-Saxons gain the upper hand. That way lies the slow decline of the authors’ rights to mere copyright and the rise of a mercantilistic Europe built on the ruins of humanistic Europe.²⁰

When in 1957 the French passed their first comprehensive law on the subject since the 1789 revolution, they invoked the author’s moral rights to distinguish themselves from the mercantile Anglo-Saxons.²¹ Down to our own day, the French battle for their cultural exceptionalism. In 2004 a French government report praised the nation for having formulated the principle of the author’s personal rights, while the Anglo-Saxons protected merely business investors.²² As of this writing in 2014, trade negotiations between the European Union and the United States hinge on whether an exception to free trade will be permitted to the French cultural industries. On such issues all French agree, left and right. During recent parliamentary debates Communist and Socialist senators vied with each other in support of France’s tradition of moral rights, railing against the "facile logic of copyright à l’américaine."²³

Such clashes pit against each other not just two legal systems but diametrically opposed philosophies.²⁴ The French take for granted that there is a contrast, indeed a debate and an antagonism across the Atlantic.²⁵ A standard French legal textbook from 2005 insists that the individualistic French approach radically differs from the more communitarian line—guided by the public’s interest, not the author’s—taken by the Communists, Nazis, and Americans (together at last!).²⁶

THE STAKES

Why should we care about woolly-headed disputes over authorial rights and the social role of creativity? More is at stake than the amour propre of the creative classes. Fought in a recognizably modern sense for over two centuries, such debates have recently flared up again as intellectual property has become increasingly important to modern economies. The human mind, claims the internet visionary John Perry Barlow, is replacing sunlight and mineral deposits as the principal source of new wealth.²⁷ The cost of manufacturing a pair of Nike shoes is 4 percent of its retail price. The rest consists of intangibles: patents, trademarks, brand image, know-how, and the like.²⁸ In 2010 industries heavily based on intellectual property provided 27 percent of US jobs.²⁹

Issues of ownership and its enforcement have extended beyond obvious industries like film, music, publishing, and software also to manufacturers—computers, pharmaceuticals, agricultural chemicals, car parts, and fire alarms. Pirating digital products is far more lucrative than counterfeiting physical items. A knock-off Gucci handbag costs roughly the same in materials as the original, though spared the investment of whatever design genius lies behind it. To develop a semiconductor chip can cost $100 million, to copy it a thousandth of that.³⁰ With software the disparity is even starker. Digitization has steered the marginal cost of a pirated software program, song, or film toward zero. The laws originally formulated for writers, artists, composers, and publishers have become serious business. Modern economies demand legally clear and enforceable intellectual property rights across a global economy.

International trade too has become more focused on intellectual property. During the 1990s the United States, Europe, and Japan faced the developing world and the rising Asian nations in disputes over copyrights and patents. Threatened with being cut-off from access to first-world markets for their—mainly agricultural and commodity—export goods, poor countries now had to impose regulations against counterfeiting and infringement formulated in Washington and Brussels.³¹ Arguably, this strict global enforcement of intellectual property rights introduced late in the twentieth century prevented emerging nations from following the same low road of piracy that the currently industrialized ones—none more shamelessly than the United States—had themselves travelled during the previous two centuries.³² Today, the US shakes its fist at China’s pirates, as Europe did at America’s a century ago. But China is already the third largest patentor in the world, trailing only the United States and Japan, and it joined the Berne Convention (the first international copyright union) in 1992, only three years after the Americans.³³ At some point soon, if it has not already happened, China too—like the US in the 1980s and ’90s—will switch from pirate to policeman.

THE BATTLE IS JOINED

Inherent in the clash between copyright and authors’ rights are strikingly divergent attitudes toward the creation and dissemination of culture, the reciprocal obligations and interests of creators and society, and the nature and social function of art, literature, and music. While authors’ rights have many defenders in the English-speaking world, few Europeans believe in the Anglo-Saxon system. European criticism of copyright as sacrificing culture on the altar of commodity is therefore commonly known on both sides of the Atlantic. But defenders of copyright are scarce on the Continent. Europeans are unfamiliar with the idea that the copyright ideology could be something more than support of the content industries’ selfinterest. The traditional copyright approach’s defense of the public interest and of a balance between the competing claims of audience and author are rarely heard there. But in the English-speaking world, copyright’s social purpose was widely debated up until the late twentieth century, when the United States changed course and largely adopted the Continental position of strong intellectual property rights.

The dichotomy between the two ideologies has not always been equally pronounced. Early in the eighteenth century both Anglo-Saxon and Continental nations deprived booksellers of their royal publishing privileges, instead giving authors property rights in their works, based on natural rights. But during the nineteenth century the seas parted. In Britain and America the fiction of a natural right to works was largely abandoned, replaced instead with claims founded merely on statute. On the Continent, however, the idea of authors’ strong property claims, anchored in natural rights, continued. Late in the nineteenth century it was reinforced by an allegedly equally natural claim based no longer on property, but on personality. The work was not just the author’s possession. It was part of his very being. The Anglosphere received such ideas skeptically.

Formed in 1886, the Berne Union was long the foremost international venue for propagating the authors’ rights ideology. Britain joined from the start, but grudgingly. To this day its allegiance to crucial Berne tenets has been partial at best. As the most radical interpreter of the copyright tradition, the United States long resisted Berne, joining only in 1989. But during the 1990s the US swung around, and the erstwhile copyright outlaw became intellectual property’s international policeman. Spurred on by its now powerful content exporters, it began championing strong property rights for authors and their assignees. For other aspects of the Continental ideology, especially the pesky nuisance of the author’s moral rights, the United States and Britain were eventually compelled to don legal fig leaves just big enough to render modesty its due.

The digital era’s debates over intellectual property echo these battles of the past two centuries. Will the internet be a free and open forum? Or will it be a turbo-charged but traditional form of dissemination, restrained by inherited property rights? In the 1990s public opinion was whipped to a froth as the recording industry sued its downloading customers for seven-figure sums, while law-makers were deluged by e-mails from irate music fans. Shadowy bands of digital hackers shut down corporate websites. Current disputes are heavily colored by inherited positions. The digital millennialists, so prominent in the United States, dream of a dramatically expanded public domain. They formulate what is arguably a modern version of the now-embattled US copyright tradition. In Europe, in contrast, inherited concepts of intellectual property continue to dominate. The internet is seen more as a threat to authors than a promise for the public. Until recently, digital visionaries have been marginalized. Shunned by the establishment, their views have been advocated mainly by a radical fringe of pirate parties in nations like Sweden and Germany.

The dichotomy between copyright and authors’ rights has thus fluctuated. Moderate during the eighteenth century, it became pronounced in the nineteenth. The postwar American conversion to strong intellectual property rights tempered it again, but in recent years the tension has flared up anew. Polemical accounts supporting authorial rights often emphasize the distinction between the two approaches as they attack Anglo-Saxon cultural mercantilism. Since they survey the long sweep, historical accounts have done so too. But legal scholars, writing for today’s practitioners, sometimes downplay the distinction.³⁴ Some differences remain stark: the role of work-for-hire (where the employer receives the author’s rights) and the importance of fair use (exceptions to the author’s exclusive rights) are greater in the copyright systems than on the Continent. But other differences have been effaced as intellectual property regulation globalized. As Berne members most nations now downplay the once-important role of certain formalities that used to be required for staking authorial claims. Today, the United States and the European Union both set the length of protection at seventy years postmortem. Given the internationalization of intellectual property legislation, the differences between the two approaches can best be identified through historical analysis. Seen over the longue durée, for example, terms have invariably been longer, and they have been extended earlier on the Continent than in the Anglosphere.

Though waxing and waning, the distinction between the two systems persists to this day. In 2006 the French conducted an extended debate over whether author or audience should take priority. They now located the origins of the divergence between European-style authors’ rights and Anglophone copyright not with the world’s first modern copyright law, the British Statute of Anne of 1710. Instead they regarded the first American national copyright law of 1790 as the more dangerous precedent.³⁵ The immediate enemy had shifted westward within the Anglosphere, but the fundamental antagonism remained. The trans-Atlantic spat over authors’ rights is thus part of a broader quarrel that has long pitted the Continent against the Anglo-Saxon world, or more narrowly, the French against the Americans.

PARSING THE DIFFERENCES BETWEEN COPYRIGHT AND AUTHORS’ RIGHTS

Differences between copyright and authors’ rights are clear at a general and philosophical level. But in the hurly-burly of implementation and administration, they are frequently obscured by everyday practical considerations. Outcomes are often dictated by functional necessity, not philosophical disagreement.³⁶ Courts on both sides of the Atlantic have sometimes reached similar conclusions, but for different reasons.³⁷ Let us therefore clarify the specific distinctions between these two systems. How have the ideological differences been expressed in law and jurisprudence?

Among the concrete ways in which copyright and authors’ rights have differed are these:

1. Duration of term. The Continental systems have historically had longer terms of protection for authors. Indeed, over three centuries terms have always been shorter in the United States than in France or Germany, and only as of 1998 have they been largely the same.³⁸ That holds for the United Kingdom too, except between 1911 and 1934 when Britain adopted the Berne fifty-year postmortem term before Germany did, and the two years of 1995–1997 until the French got around to implementing the EU requirement of seventy years. Anglophone term extensions have almost invariably followed Continental precedents. Natural rights ideology instinctively dictated perpetual rights, using the analogy of conventional property.³⁹ Perpetual rights made it into statute in Venice in 1780, in 1814 in Holland, at the end of the nineteenth century in Mexico, Venezuela, and Guatemala, and in Portugal in 1927. But on the whole they have not proven realizable. Yet to this day perpetuity remains a constant ideal of the Continental rhetoric of strong authorial rights. Recent standard French legal textbooks advocate perpetual rights in ways that are inconceivable in their Anglophone equivalents.⁴⁰ In contrast, the American Constitution prohibits perpetuity, specifically restricting copyright protection to limited times. Perpetual Anglophone copyrights have existed only as a few rare anomalies: the British Crown for the King James translation of the Bible; Oxford and Cambridge universities for works given them by their authors; and the Great Ormond Street Hospital for Children for J. M. Barrie’s Peter Pan.⁴¹

European opinion has almost unanimously seen long terms as an unmitigated good. Only the maximum possible protection, as one observer put it, can enhance the full development of culture.⁴² In contrast, the Anglophones have more often worried that the public domain would thus be curbed. Eldred v. Ashcroft (2003) challenged the constitutionality of extending terms for existing works after the United States had stretched them from fifty years postmortem to the EU norm of seventy.⁴³ The Supreme Court, however, ruled that yet another retrospective extension of term did not render it unlimited and thus unconstitutional. Despite the plaintiffs’ failure, Eldred highlighted a basic trans-Atlantic difference. Their lawyer, Lawrence Lessig, questioned whether there was a constitutional limit on America’s ability to imitate the Europeans as they continually expand the term in light of their own vision of what copyright is about.⁴⁴ Europe had nothing like the American outpouring of legal opinion criticizing the relentless lengthening of copyright’s duration.⁴⁵

The globalization of intellectual property regulation has erased many of the actual differences between copyright and authors’ rights. Most nations now have largely the same lengthy term durations. But their national preferences have been revealed by whether they have actively espoused long terms or have reformed only under pressure, with dispute and foot dragging. Seen historically, authors’ right countries have favored longer terms, while copyright nations resisted them.

2. Formalities of protection. Based on authors’ inherent claims to their work, the Continental approach has discounted the formalities traditionally required to protect works—registering, affixing notice to and depositing the work, renewing rights, and the like. Protection is triggered by the sheer fact of creation. Why should authors lose their claims for having overlooked some paperwork? The work is often covered even without being fixed—as for lectures, improvisations, and the like.⁴⁶ On the few occasions where the Continental systems require formalities, neglect of them generally merely delays or curtails protection.⁴⁷

In the Continental view formalities are artificial obstacles to the author’s natural property rights. But from copyright’s vantage the point of formalities was to ensure that only those works worth jumping hoops for were kept in private hands and out of the public domain. A 1975 US Senate report’s first reason to support formalities was that they placed in the public domain the large body of published material that no one bothered to copyright.⁴⁸ The opposition between the two systems can be summed up thus: in authors’ rights works were born as private property. But in copyright they belonged automatically to the public domain unless the author took pains to register them. No registration, no right.⁴⁹ Formalities thus underlined the copyright thesis that intellectual property was not based on natural rights but was an artificial creation of statute.

On this point, too, the two approaches have come to approximate each other. And yet the antagonism has not wholly vanished. The UK followed Berne’s dictate to eliminate formalities in 1911, but it now also requires that authors formally assert their moral rights—a true muddle. Though the US eliminated formalities starting in 1976 as it edged toward joining Berne, American critics to this day still lament the sacrifice and have attempted to challenge its constitutionality, arguing that automatically protecting most works impedes the progress of science and the useful arts.⁵⁰

3. Alienability. Eighteenth-century reforms aimed to give authors property rights in their works to sell on the market. Unless the works were entirely theirs to alienate, they would receive less than full value.⁵¹ In this respect, copyright regarded the work as akin to other forms of property. After alienation the creator and creation had parted. In authors’ rights systems, in contrast, works can never be wholly divorced from their creators. They retain significant control, even after having assigned economic rights. As a free man cannot sell himself into slavery, so the author cannot alienate his work. In German law authors quite simply cannot assign or transfer the work as such but only limited use rights. In France today moral rights (to which we come shortly) are inherently inalienable. As shown in the case of Prince Michael of Greece, discussed in the introduction, even if alienated by contract, moral rights remain with the author. By contrast, in the Anglophone world rights (including those moral rights recognized in statute) are largely assignable. Indeed, as we will see with the work-for-hire doctrine, in legal terms owners are regarded as authors.

4. Contracts. Since copyright allows fuller alienability of works, contracts in the Anglosphere have usually been freer than in authors’ rights countries.⁵² Continental nations often regulate how authors can transfer rights to future works.⁵³ The French law of 1957, for example, forbade all blanket transfers of future works and then specified allowable transfers in numbing detail. Only five future works in any given genre within five years were legal. The publisher had to decide to accept each work within three months after submission. The author was able to revoke the agreement if the publisher rejected two successive works in one genre, and so forth. The author was assumed to be the weaker party, in need of protection against rapacious disseminators.⁵⁴ We want to defend the author against himself, explained Jean Zay, minister of education in the French Popular Front government of the late 1930s.⁵⁵ Authors were helpless, unworldly Luftmenschen, unable to defend themselves—or so the French argued during their campaign to insert strong authorial rights into the U.N. Declaration of Human Rights in 1948.⁵⁶

Copyright nations, on the other hand, have generally considered authors able to manage their own affairs. Authors are seen as free agents in the marketplace, knowing the value of their works and selling them only for a fair price. But even market-driven systems have sometimes cosseted them. The 1976 US Copyright Act allowed authors a second bite of the apple. After thirty-five years they could renegotiate terms (termination of transfer) since the unequal bargaining position of authors meant they could not know the value of their work until it had been exploited.⁵⁷ But only rarely did US law allow copyright law to trump contract.

5. Identity of the Author and Work-for-Hire. Work for an employer (work-for-hire) or by corporate or collective entities has been closely connected to alienability. The Continental systems have recognized mainly flesh-and-blood creators, not legal entities nor anyone other than the actual author. There are exceptions to this generalization. For collective works with many individual contributors, authorship is sometimes vested in corporate entities.⁵⁸ In 1985 France vested rights for software in the corporate employer of the programmers. But, as a rule, even work done for hire in the French and German systems entitles employee authors to similar rights in their creations as their self-employed peers.

In contrast, copyright systems have routinely vested authorship in corporate entities, attributed work-for-hire to the sponsoring entity, and resolved issues surrounding collective, collaborative, and corporate works by contract.⁵⁹ Not only is the corporate entity behind the work the first owner of copyright, it is often regarded as the author too.⁶⁰ Who was the author of Citizen Kane, Milos Forman asked rhetorically in 1994? And who is it today? RKO Pictures in 1941 and now Turner Broadcasting were the—in his eyes—ludicrous answers.⁶¹ The 1909 US Copyright Act founded corporate authorship by including employers as authors of work-for-hire. The 1911 UK Copyright Act introduced work-for-hire too and vested authorship of photographs and musical recordings in the corporate owner. The 1976 US Copyright Act deemed the employer of the creator not only the owner of all of the rights comprised in the copyright but also the author of the work.⁶² Work-for-hire demonstrated how copyright resisted Romantic ideas of individual authorship even as the Continent remained indebted to them.⁶³ It remains perhaps the most important divergence between the two systems, especially considering the large fraction of all content that is produced as work-for-hire in the Anglo-Saxon nations.

6. Exceptions to the author’s exclusive rights. As we would expect, the Anglophone nations have generally accepted broader exceptions to authorial rights, allowing other authors, interpreters, and the audience to make use of works without the permission of rights holders. The US fair use doctrine has allowed use of protected works without permission or compensation for broad, socially beneficial purposes. American practices have been more expansive than the fair dealing of other Anglophone nations. That in turn has tended to be more inclusive than the Continental counterparts, with their specific excepted uses enumerated in statute. Here too, international standardization has scrubbed away stark differences. But, as we will see, the issue has reappeared in recent years as France and Germany were pushed to expand their otherwise miserly exceptions to authorial rights.

7. Compulsory licensing. Compulsory licensing (sometimes known as equitable remuneration) allows works to be reproduced without the author’s permission so long as certain criteria—usually royalty payment—are met. It has been used to bring works efficiently to the public without much regard for the author’s rights, other than that of being paid. It has meshed more naturally with copyright practices than the Continental approach and was adopted earlier and with less fuss in the Anglophone world.⁶⁴ Licensing violated the core Continental principle of the author’s exclusive rights since, in effect, it legalized infringement in return for automatically paid fines. Licensing destroyed his power of bargaining, George Bernard Shaw complained to a parliamentary committee in 1909. If competitors could issue their own editions at rates determined by law, the first publisher would offer less than for exclusive rights.⁶⁵ Compulsory licensing thus spoke to the interests of the public and disseminators. Some advocates have seen it as a way to overcome the perennial conflict between authors’ property rights and society’s insistence on access. Squaring the circle, compulsory licensing granted authors their (pecuniary) due, perhaps even perpetually, while throwing open the doors to any royalty-paying disseminator. Both Mark Twain and Ezra Pound proposed systems of perpetual authorial rights, tempered by compulsory licensing to reprint.⁶⁶

Compulsory licensing has also been used to override authors’ attempts to suppress works altogether. Most nations allow new editions, even against the rights holder’s will. The British 1842 Copyright Act permitted the Privy Council to grant compulsory licenses. Early in the twentieth century American and British composers were forced to accept compulsory licensing in return for being granted rights to sound recordings of their works. More recently, developing nations have favored compulsory licensing to gain better terms than those allowed by a classic regime of exclusive rights. And some open access advocates support licensing to break the cyberlords’ information monopolies.⁶⁷

8. Originality. We might have expected that the Continental nations, with their emphasis on the personal connection between author and work, would demand a higher standard of originality than the copyright countries. In fact, the contrast has not been dramatic. The Anglophone nations imposed a doctrine of sweat of the brow, demanding effort but not necessarily creativity. The United States, however, also required a minimum level of originality. This was reaffirmed in 1991, when the Supreme Court refused protection to a telephone directory that had merely been copied from another.⁶⁸ In the meantime the Continental originality bar has never been high, though it is defined more stringently in Germany than in France. In 1991, for example, the EU Software Directive broadly harmonized the standard of originality for computer programs at the Anglo-Saxon level. Such works had to be the author’s own intellectual creation, but nothing more.⁶⁹

9. Moral rights. The fundamental premise of the European authors’ rights ideology is to consider works as a form of property, sanctified by natural rights. During the nineteenth century this was expanded to include also a personal connection that—equally based on nature—reinforced the tie between authors and their works. Moral rights seek to protect in law that investment of authorial personality. By granting authors powers to control works even after they have sold their exploitation rights, moral rights privilege creators at the expense of disseminators, interpreters, and the audience. In Anglo-American copyright, in contrast, moral rights have played a much smaller role, protected—if at all—only incidentally or outside the copyright statutes.

THE IDEOLOGY OF MORAL RIGHTS

Moral rights allow the author to determine when and how his work is released (disclosure). They ensure that he is recognized as its author (attribution). And they prevent his work from being changed without approval (integrity). In addition to these three primary moral rights has also come the author’s right to withdraw his work from dissemination should he change his mind. And finally, the resale right, usually called the droit de suite, is an ordinary economic right that guarantees artists a bite of the apple each time their artworks are resold. Evidently not a moral right, the droit de suite has nonetheless often been invoked to demonstrate the author’s strong position in the Continental nations. It was a further enrichment of the artist’s legal position, one Italian commentator celebrated during the Fascist era.⁷⁰ France was the first to institute the resale right in 1920, followed by the Belgians in 1921, and the Italians in 1941.⁷¹

The term moral rights is a translation from the French (droit moral). Effectively a misnomer, it has nothing to do with morality but serves to distinguish such rights from the economic rights of exploitation. Usually attributed to the French legal